335 F.2d 636 | Ct. Cl. | 1966
Lead Opinion
delivered the opinion of the court:
The present motions were submitted without oral argument to the court for its decision. Plaintiff is an Oklahoma corporation organized with an FHA form charter and bylaws in accordance with requirements of the Federal Housing Administration for the purpose of owning and operating a 72-unit garden-type rental housing project, known as Fort Sill Garden Apartments, located at Lawton, Oklahoma.
Fort Sill Gardens was originally constructed-in 1952 under-section 908, Title IX of the National Housing Act, 12 TJ.S.C. § 1750 (g) (1964 ed.) The- pro j ect, although FHA mortgage insured, was privately financed and owned. On July 1,1957 FHA acquired title to the project as a result of a default by the owner in meeting mortgage payments. The project was thereafter sold to plaintiff by FHA in May, 1959 for á consideration slightly in excess of one-half million dollars.
Thereafter,. defendant allegedly engaged-in certain conduct which plaintiff now complains of, and which forms the basis of plaintiff’s claim and its present motion. Specifically, plaintiff' alleges that “Since selling said project to plaintiff corporation, defendant engaged in ..purposeful, destructive and injurious competition'with plaintiff * * '*”■ in violation, of statute and implied promise.. , ■
Plaintiff argues that' certain provisions: of the Defense
This court is of the opinion that plaintiff’s petition must be dismissed, as we have no jurisdiction to hear this case. Section 1491, Title 28, U.S.C. (1964 ed.) is the basic jurisdictional statute for this court. Under the statute, original jurisdiction is given for claims against the United States not sounding in tort. Plaintiff’s present action, that of ruinous competition, clearly sounds in tort. It has been repeatedly held that a claim sounding in tort is beyond this court’s jurisdiction. Locke v. United States, 151 Ct. Cl. 262, 283 F. 2d 521 (1960); Miraglia v. United States, 141 Ct. Cl. 664 (1958); Bornhoft v. United States, 137 Ct. Cl. 134 (1956); Leverette v. United States, 135 Ct. Cl. 207, 142 F. Supp. 955 (1956); Burkholder v. United States, 128 Ct. Cl. 767, 119 F. Supp. 743 (1954), cert. denied, 347 U.S. 977 (1954).
Plaintiff has attempted to interject a contract theory into the case by alleging that under the mortgage agreements the Government impliedly agreed to do nothing to hinder per
Defendant’s motion for summary judgment is granted; plaintiff’s motion for summary judgment is denied, and the petition is dismissed.
Plaintiff has couched the conclusory words of Its petition in the form of a demand for payment for a Fifth Amendment taking. Such a theory is completely at variance with the theory of recovery as set out in plaintiff’s brief and paragraphs 1-9 of its petition. Further, there has been no seizure of any of plaintiff’s property by defendant, either actual or implied, nor any kind of an easement obtained by defendant. Plaintiff actually seeks some form of damages, rather than just compensation for property taken in contravention of the Fifth Amendment.
Concurrence Opinion
concurrmg:
Although I agree with the result reached by the majority, I prefer to rely upon a different ground. In my opinion, even if plaintiff’s claim is within the jurisdiction of this court, plaintiff is not entitled to recover.
Plaintiff asserts that, by enacting section 102 of the Defense Housing and Community Facilities and Services Act of 1951, 65 Stat. 294, 42 U.S.C. § 1591a (1964), Congress indicated a policy “to prohibit the Federal Government from building any permanent housing which would interfere with the economic soundness of the investment of private builders * * * [who provided housing in areas which the President had determined to be critical defense housing areas].” As pointed out in the majority opinion, plaintiff’s claim is based in part upon alleged violation of this policy. I agree with defendant that plaintiff’s contention is without merit. The significance which plaintiff attributes to 42 U.S.C. § 1591a
Plaintiff also argues that the Government violated an implied condition not to hinder plaintiff’s fulfillment of its loan agreement and mortgage contract. I cannot accépt the view that the Government impliedly agreed to the terms plaintiff urges. In Bateson-Stolte, Inc. v. United States, 158 Ct. Cl. 455, 305 F. 2d 385 (1962), which involved a construction contract, this court rejected the plaintiff’s argument that the Government had impliedly promised to refrain from certain activities.
TEe section in question, 42 U.S.C. § 1591a, provides, in part, as follows:
“* * « no permanent Rousing shall be constructed by the Federal Government under the provisions of subchapter IX of this chapter except to the extent that private builders or eligible mortgagees have not, within, a period of not less than ninety days * * * following public announcement of the availability of such mortgage insurance aids under * * * [certain sections] of Title 12, indicated * * * that they will provide the housing determined to be needed in such area for defense workers and military personnel and publicly announced as provided by subsection (a) of this section. * * *”
With regard to the matter of implied conditions, plaintiff cites York Eng’r. & Constr. Co. v. United States, 103 Ct. Cl. 613, 62 F. Supp. 546 (1945), cert. denied, 327 U.S. 784 (1946), and Beuttas v. United States, 101 Ct. Cl. 748, 60 F. Supp. 771 (1944). Discussion of these cases is'unnecessary. It is sufficient to mention that the relevant part of the judgment which this court had granted to the plaintiffs in Beuttas was reversed by the Supreme Court. 324 U.S. 768, 773 (1945). The reasoning of York Eng’r. & Constr. Co., which was based upon Beuttas, was rejected in Bateson-Stolte, Inc. v. United States, supra, at 462.